EPA May Impose TMDLs for Substandard Rivers Impaired Solely by Nonpoint Sources

David K. Bowles

In Pronsolino v. Marcus, No. 99-01828 (N.D. Cal. Mar. 30, 2000), the federal court for the Northern District of California issued a decision important to all nonpoint sources, including silvicultural and agricultural interests. The court held that Section 303(d) of the Clean Water Act ("CWA") authorizes the U.S. Environmental Protection Agency ("EPA") to set Total Maximum Daily Loads ("TMDLs" – a measure of the maximum level of a pollutant in a waterway which would allow the waterway to sustain applicable water quality standards, considering seasonal variations and a determinable margin of safety) for all navigable waterways in the United States, including those impaired solely by nonpoint sources. The court also ruled, however, that while a State must incorporate those TMDLs into the State’s "continuing planning process," the State could decline to regulate based on those TMDLs – albeit with the possible loss of federal funds.

The case arose from the following facts. Plaintiffs owned forested land along the Garcia River in northern California, and applied to the California Department of Forestry ("CDF") for a permit to harvest the timber. The CDF set strict soil erosion restrictions on the harvest, allegedly based on the TMDL for the Garcia River, designed to reduce the water’s sediment content. The cost of compliance for the two original Plaintiffs was estimated at over $11 million.

Plaintiffs challenged the conditions on the ground that the Garcia River was polluted solely by logging and agricultural runoff, arguing that the EPA had no authority to issue TMDLs for waterways polluted solely by such nonpoint sources. The Mendocino County Farm Bureau, the California Farm Bureau, and the American Farm Bureau Federation all joined as Plaintiffs.

The court engaged in an extensive analysis of the history of water pollution control in the United States, concluding that the 1972 CWA was intended to control the pollution of all navigable waterways, including both point and nonpoint sources of pollution. The court emphasized at each turn the "comprehensive" intent of water pollution regulation.

The court noted that Section 303(d) of the CWA requires the States to identify those waterways for which technology-based regulation under the CWA had left "unfinished business"; that is, those waterways that are still substandard after the point sources have been controlled with best effluent reduction technology. The States are required to establish TMDLs for such substandard waterways. EPA has authority to approve, disapprove, or revise the lists of waters requiring TMDLs, as well as the TMDLs themselves. Once the TMDLs are approved, they must be incorporated into the State’s "continuing planning process" of implementing applicable water-quality standards, as required by CWA Section 303(e). The court noted that, since Section 303(e) explicitly addressed "all navigable waters," waters polluted only by nonpoint sources of pollution were intended to be covered.

Plaintiffs argued that Section 303(d), on its face, applies only to waters polluted by point sources. The court rejected this argument for four stated reasons: (1) that the TMDLs were applied through "incorporation" into the States’ Section 303(e) "continuing planning process," and that failure to account for nonpoint sources in that process would make achievement of water-quality standards impossible; (2) that the language of Section 303(d), which imposes the TMDL requirement, encompasses all substandard navigable waterways within the boundary of a given State; (3) that excluding the "large number of rivers and waters polluted solely by agricultural and logging runoff would have left a chasm in the otherwise ‘comprehensive’ statutory scheme"; and (4) that Ninth Circuit precedent supported this result. The court concluded that the EPA has the authority to set TMDLs for waterways polluted solely by nonpoint sources.

Near the end of the opinion the court moderated its decision, holding that the EPA has no authority to "regulate state land-use practices." The court ruled that the CWA requires that California set TMDLs for waterways polluted by nonpoint sources, point sources, or both. Such TMDLs must be incorporated into California’s planning process. The court held, however, that California is free to "moderate or modify the TMDL reductions, or even refuse to implement them."

The court noted that the EPA could withhold federal funds in retaliation if a State chooses not to enforce a nonpoint source TMDL, but that the State nonetheless has the choice. The court also pointed out possible future avenues of attack on TMDL regulations, noting that arbitrary or capricious TMDLs could be reviewed under the Administrative Procedure Act ("APA"). The court held, however, that Plaintiffs had not mounted such an attack in this case. Absent such a claim, the court held that the EPA was justified in imposing the TMDL on the Garcia River, and ruled for Defendants.

Courtesy of the McCutchen Doyle Brown & Enersen LLP Update File.